The question of whether mediation should be applied to workplace bullying situations comes up recurrently in discussions about the potential application of alternative dispute resolution (ADR) mechanisms to this form of abuse.

Mediation is an inappropriate alternative in cases involving any type of abuse or violence such as domestic violence, child abuse, sexual assault, school or workplace bullying.

The victims or targets in these situations are at a disadvantage and are subjected to further abuse.

…The mediation process assumes that all parties involved in the mediation are “sufficiently capable” of negotiating and reaching a mediated agreement with each other as equals in the process. In cases involving workplace bullying or any type of family violence, this is a false assumption….

Esque adds a list of common reasons why mediation in general can fail. Here are the first five on her list:

These factors would apply to many targets of workplace bullying and underscore why I, too, have generally opposed using mediation in workplace bullying situations.

Restorative justice

Dr. Walker also opposes applying restorative justice (RJ) approaches to workplace bullying. RJ practices have been developed in criminal justice settings, including structured proceedings that attempt to reconcile victim and offender.

As I suggested in a recent blog post, I’m more open to the possibility of applying RJ principles to workplace dispute resolution, which may include bullying situations. However, Esque’s piece has helped me to clarify where I stand on this, nudging me toward my so-called “aha” moment.

First, legal protections, then (perhaps) ADR

Here’s the point: Before we even consider introducing mediation or restorative justice into workplace bullying situations, we need to enact legal protections such as the Healthy Workplace Bill.

Currently in the U.S., applying any ADR mechanism to a workplace bullying scenario often would occur under the assumption that the abusive behavior is legal. This automatically tags the situation as one of conflict rather than one of abuse.

By comparison, crime victims agreeing to participate in restorative justice practices typically have the power of the criminal codes and the criminal justice system behind them, thus significantly changing the presumptions and power dynamics between them and the offenders.

In other words, the power relationships between aggressors and targets in genuine workplace bullying situations will shift significantly once bullying is declared an unlawful employment practice. That will be the time to examine what ADR mechanisms may be appropriate.

I can personally attest to the ineffectiveness of mediation in abusive situations. I was court-ordered into mediation with an abusive spouse, and it was one of the most traumatizing experiences of my life, next to the abuse both I and my child experienced. Those five bullets listed above for why mediation can fail were all present in my situation. I would also highly emphasize the “Perhaps ADR” above. While legal protection is helpful, it does nothing for emotional protection. I had legal protection in my case of domestic violence, and it did nothing to really help me.

“You don’t mediate abuse” is one of the standard lines I’ve used over the years, but that said, as a lawyer I’m also well aware of how traumatizing (and re-traumatizing) the litigation experience can be.

So…I’m still wrestling with what alternative dispute resolution mechanisms might be more psychologically healthy than going through a full-blown court case. However, until we even the legal scales concerning bullying at work, we should put that question on the shelf.

• The absence of trust
• The imbalance of power between conflicting parties
• Fear of subsequent intimidation and abuse post mediation

I will and can attest to three of teh two bullets above,the eventual meeting with the MCAD and the Company with their Corporate Attorney,Ultimately confirmed,what kept me from speaking up about the abuse i suffered, 1 Month after the Meeting,I was Terminated.
The Post intimidation and abuse became an absolute nightmare, The Emotional truma from being abised in the workplace,has had a Major Impact on my life,I struggle with the fact will i be able to ever trust again,my self asteem has taken a nose dive,it’s like i;m expecting things to get worst than it already is….god knows,i pray that it don’t.
What’s more disturbing is,the comapanies Attorney and the Human resource director,admitted i was discriminated and retaliated against,But used the MA 300 days filing law to support their defense,even though i continued to work there.

Dear Shelton,
I too was terminated after calling HR in. My internist insisted on it since my health was at stake. Then the “mediator” was called in to our department. It was a fiasco, biased, and horrifying. The bullying escalated by my own supervisors, not just the bully. They wanted me to quit because I made their department look bad by them not being able to handle the situation. Bogus write ups became weekly for me. Constantly sent into the office for more bullying. I worked there 13yrs, one of the best employees and the longest anyone held my post.Trust is out of the question for me now with ANY future co-workers or supervisors. But TRUST me, it does get better the longer you are away from this toxic environment. It will be two years in July for me. I am healthier, stronger, more educated and an administrator for a private anti-bullying site now. Praying does help. So does support from others who have been through it.

The problem with the ‘no mediation’ viewpoint is that sometimes the accused bully just hasn’t done anything wrong. I know from experience there really is bullying and the effects this has on every aspect of the victim’s life. I also know from experience that some people are accused of being a bully in situations that differ as much as the individuals concerned, but include: a way to get around an anticipated difficult performance discussion, lack of social skills, or plain vindictiveness. The person accused suffers. A lot. Particularly if they care about how they interact with people on any real level.
So… if there was mediation for this particular type of ‘reverse bullying’ some outcomes could include: a common understanding of each sides’ viewpoint, an opportunity for genuine remorse expressed for acts that were considered bullying on one side – but were never even on the radar as such on the other. Truly, misunderstandings and misconceptions do occur as a normal part of everyday interactions. Following through with a formal complaint of bullying harms both parties. If mediation was sought in certain cases (how about when there is no history of other complaints of bullying in a 20 year work history, but a history of complaints leading to personal benefits to the complainant?) then early and effective solutions could resolve a traumatic experience for all involved.

Can mediation strategies resolve workplace bullying? Many employers automatically call for conflict resolution in these instances, but I believe that such approaches are contraindicated in the case of leaders who engage in bullying behaviors. Certainly these individuals create workplace conflict, but striving to resolve these symptomatic conflicts does not solve the underlying problem of a chronically aggressive behavioral style, usually directed at multiple targets – anyone who threatens the abrasive boss’s self-perception of competence. I have spoken with some mediators who argue that coworkers can help to reshape their boss’s behavior through the mediation process, but I don’t believe that employees should be asked to shoulder this intimidating task. Many members of our Institute who are also trained mediators report that they are called in to provide specialized coaching after repeated mediations that failed to resolve the abrasive leader’s behavior, or when the target(s) of their disruptive behaviors were too frightened or exhausted to engage in the mediation process. Only yesterday I was contacted by such an employee, who asked “Why do I have to be the one responsible for taking this person (the abrasive leader) on (in mediation) when others have repeatedly reported their concerns to management?” It strikes me as inappropriate that we would hope a co-worker could successfully address and resolve a leader’s chronically aggressive behavioral style.

Bosses who bully others truly need help. Telling an abrasive boss to “be nicer” is like telling a drowning person to start swimming – accurate advice, but not particularly helpful. These individuals are at a loss as to how to motivate others without barking, biting, or otherwise bullying their coworkers: “I’ve been told to soften up my communications, to be more polite. I’ve fought that, because I don’t believe in sugarcoating the truth.” Once made aware of their destructive impact on others they need to quickly gain insight into their defensive aggression and develop more positive management strategies. The method we use, which is taught at the Boss Whispering Institute, is based upon my 30 years of coaching and research with these individuals.

Some people are abrasive / insecure / clueless and can be a pain in the butt to work with. However, there is hope for these types.

What A LOT of people don’t / won’t recognize is that there are people who enjoy hurting others. It’s as simple as that. I don’t believe there is a program on earth that will be effective with this type. The only solution is to remove them from positions of influence.

The belief that “there is good in everyone” is simply not true. I learned that the hard way.

Resolving workplace colleague issues can be highly supported by an external mediator. To be in a rooom where there is a single no biased individual between the workers who are having the dispute is only a good thing, and can help to surface the root of problems and lead to conflict resolution, i would highly recommend workplace mediation.